¶14 (dissenting) — I disagree with the majority opinion for several reasons. I first object to the majority’s decision to reverse on the basis of a court rule that the parties never cited or argued below. Although there is case law allowing us to affirm on any basis the record supports, I see none authorizing us to reverse on a ground never presented to the trial court.
¶15 More importantly, however, I agree with our commissioner that a summary dismissal of a sexually violent predator (SVP) petition under CR 41 is inconsistent with *78RCW 71.09.090, which contemplates a trial even after the Department of Social and Health Services (DSHS) has determined that an SVP detainee is eligible for release.2 The statute expressly provides that in such an instance, the court “shall within forty-five days order a hearing.” RCW 71.09.090(1).
¶16 When the legislature uses the word “shall” in a statute, it imposes a mandatory duty. State v. G.A.H., 133 Wn. App. 567, 577, 137 P.3d 66 (2006) (citing State v. Bartholomew, 104 Wn.2d 844, 710 P.2d 196 (1985) (Bartholomew III)). The holding in Bartholomew III is particularly instructive here. The Washington Supreme Court affirmed Bartholomew’s aggravated first degree murder conviction but invalidated his death sentence because of the unconstitutional admission of evidence about his previous criminal activity. State v. Bartholomew, 98 Wn.2d 173, 176, 654 P.2d 1170 (1982) (Bartholomew I), vacated, 463 U.S. 1203, 103 S. Ct. 3530, 77 L. Ed. 2d 1383 (1983).3 On remand, the prosecutor decided not to seek the death penalty, reasoning that the Supreme Court’s holding deprived the State of the evidence needed to rebut the mitigating circumstances and that a sentence of life without parole was appropriate. Bartholomew III, 104 Wn.2d at 846. The trial judge questioned the prosecutor’s right to decline to seek the death penalty, and the Supreme Court granted review. Bartholomew III, 104 Wn.2d at 846. The Supreme Court examined statutory language stating that “ ‘a special sentencing proceeding shall be held’ ” once a defendant is convicted of aggravated first degree murder if notice of such a proceeding was filed and served, and it also took note of *79language stating that the trial court “ ‘shall impanel a jury’ ” to decide the proper penalty after a remand on the death penalty question. Bartholomew III, 104 Wn.2d at 847-48 (quoting RCW 10.95.050(1), (4)). The court interpreted the word “shall” as mandatory: “The general rule is that the word ‘shall’ is presumptively imperative and operates to create a duty rather than conferring discretion.” Bartholomew III, 104 Wn.2d at 848. Consequently, the prosecutor had no discretion to determine unilaterally that the lesser penalty should be imposed. Bartholomew III, 104 Wn.2d at 848.
¶17 RCW 71.09.090(1) expressly provides that the trial court shall hold a hearing on a DSHS-authorized unconditional release petition, thus creating an inconsistency between the statute and any application of CR 41 that would mandate dismissal of the underlying SVP petition without a trial. In light of this inconsistency, the specific statute governs and requires a hearing on whether Gary Cherry is eligible for unconditional release. See CR 81. The only error that occurred below was the trial court’s failure to order such a hearing.
¶18 The trial court treated the proceeding before it as a show cause hearing and found no probable cause to support a full hearing on whether Cherry still meets the SVP definition. But a show cause hearing is required only if a detainee petitions for release without DSHS authorization. RCW 71.09.090(2)(a); In re Det. of Ambers, 160 Wn.2d 543, 548, 158 P.3d 1144 (2007); 13 Royce A. Ferguson, Jr., Washington Practice: Criminal Practice and Procedure § 5416, at 572-74 (3d ed. 2004). At a show cause hearing, the trial court determines whether probable cause exists to warrant a full hearing on the issue of unconditional release. RCW 71.09.090(2)(a); In re Ambers, 160 Wn.2d at 548. The State must present prima facie evidence establishing that the detainee continues to be an SVP. RCW 71.09.090(2)(b). If the State cannot or does not prove this prima facie case, there is probable cause to believe continued confinement is *80not warranted and the matter must be set for the full evidentiary hearing described in RCW 71.09.090(3). RCW 71.09.090(2)(c); In re Det. of Petersen, 145 Wn.2d 789, 798, 42 P.3d 952 (2002).
¶19 Because DSHS authorized Cherry’s petition for unconditional release, there was no probable cause issue before the court. But even if there had been, the State’s position that Cherry no longer meets the necessary criteria constituted probable cause to believe that continued confinement was unwarranted, thus the trial court was required to grant a full hearing on the matter. RCW 71.09-.090(3); see In re Det. of Elmore, 162 Wn.2d 27, 37, 168 P.3d 1285 (2007) (in determining whether probable cause exists, court may not weigh evidence but must decide whether the facts, if believed, establish that the person is no longer an SVP).
¶20 I would hold that both the law and the evidence required the trial court to grant Cherry’s request for a jury trial on his unconditional release petition. Although an evaluation of the evidence is a matter for the jury, my examination of the record reveals evidence sufficient to present an issue of fact on Cherry’s continuing status as an SVP.4
¶21 P dissent and would reverse and remand for a jury trial on the issue of whether Cherry is entitled to unconditional release from his SVP confinement.
I also note that generally CR 41 motions are intended to apply to preadjudication proceedings and that Gary Cherry has already been found by a jury to be an SVP and the trial court has previously entered valid commitment orders based on that finding. CR 59 and CR 60 address the vacation and modification of judgments, not CR 41.
In State v. Bartholomew, 101 Wn.2d 631, 683 P.2d 1079 (1984), the Supreme Court affirmed its earlier holding after the United States Supreme Court vacated Bartholomew I and remanded.
Most notably, the reports cited by the parties rely on the continuation of the status quo in Cherry’s life. The reports repeatedly mention how Cherry’s wife and best friend assist him in maintaining a life structure sufficient to control his predatory conduct and suggest that as long as this assistance continues, Cherry is unlikely to reoffend. The reports do not suggest that alone Cherry is unlikely to reoffend.